ex10-4



 



Exhibit 10.4



GUARANTY



                  GUARANTY (as the same may be amended, supplemented or otherwise modified
from time to time, this “Guaranty”), dated as of March 1, 2002, by and among
ERT DEVELOPMENT CORPORATION, a Delaware corporation (the “Subsidiary
Guarantor”) and FLEET NATIONAL BANK, as administrative agent (in such capacity,
the “Administrative Agent”) on behalf of the Lenders under and as defined in
the Loan Agreement (hereinafter defined).



RECITALS



          I.       Reference
is made to the Term Loan Agreement, dated as of May 9, 2001,
by and among New Plan Excel Realty Trust, Inc., a Maryland corporation, the
Lenders party thereto, and the Administrative Agent, as amended by Amendment
No. 1 to Term Loan Agreement dated September 6, 2001, and Amendment No. 2 to
Term Loan Agreement dated January 11, 2002 (as the same may be amended,
supplemented or otherwise modified from time to time, the “Loan Agreement”).


         II.      In accordance with the requirements of the Loan Agreement, the
Administrative Agent has required that Subsidiary Guarantor execute and deliver
this Guaranty.


         III.     Subsidiary Guarantor expects to derive substantial benefit from the
Loan Agreement and the transactions contemplated thereby and, in furtherance
thereof, has agreed to execute and deliver this Guaranty.


                  Therefore, in consideration of the Recitals, the terms and conditions
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Subsidiary Guarantor, the
Borrower and the Administrative Agent hereby agree as follows:




	 	1.	 	Defined Terms



                     (a)         Capitalized terms used herein which are not otherwise defined herein
shall have the respective meanings ascribed thereto in the Loan Agreement.



                     (b)         When used in this Guaranty, the following capitalized terms shall have
the respective meanings ascribed thereto as follows:



                                  “Borrower Obligations” means all present and future obligations and
liabilities, whether deemed principal, interest, additional interest, fees,
expenses or otherwise of the Borrower to the Administrative Agent and the
Lenders, including, without limitation, all obligations under (i) the Loan
Agreement, (ii) the Notes and (iii) all other Loan Documents.



                                  “Guarantor Obligations” means, with respect to Subsidiary Guarantor, all
of the obligations and liabilities of Subsidiary Guarantor hereunder, whether
fixed, contingent, now existing or hereafter arising, created, assumed,
incurred or acquired.



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	 	2.	 	Guarantee



                     (a)         Subject to Section 2(b), Subsidiary Guarantor hereby absolutely,
irrevocably and unconditionally guarantees the full and prompt payment when due
(whether at stated maturity, by acceleration or otherwise) of the Borrower
Obligations. The agreements of Subsidiary Guarantor in this Guaranty
constitute a guarantee of payment, and no Credit Party shall have any
obligation to enforce any Loan Document or exercise any right or remedy with
respect to any collateral security thereunder by any action, including making
or perfecting any claim against any Person or any collateral security for any
of the Borrower Obligations prior to being entitled to the benefits of this
Guaranty. The Administrative Agent may, at its option, proceed against the
Subsidiary Guarantor, in the first instance, to enforce the Guarantor
Obligations without first proceeding against the Borrower or any other Person,
and without first resorting to any other rights or remedies, as the
Administrative Agent may deem advisable. In furtherance hereof, if any Credit
Party is prevented by law from collecting or otherwise hindered from collecting
or otherwise enforcing any Borrower Obligation in accordance with its terms,
such Credit Party shall be entitled to receive hereunder from the Subsidiary
Guarantor after demand therefor, the sums which would have been otherwise due
had such collection or enforcement not been prevented or hindered.



                     (b)         Notwithstanding anything to the contrary contained herein, the maximum
aggregate amount of the obligations of Subsidiary Guarantor hereunder shall
not, as of any date of determination, exceed the lesser of the greatest amount
that is valid and enforceable against Subsidiary Guarantor under principles of
New York State contract law and the greatest amount that would not render
Subsidiary Guarantor’s liability hereunder subject to avoidance as a fraudulent
transfer or conveyance under Section 548 of Title 11 of the United States Code
or any provisions of applicable state law (collectively, the “Fraudulent
Transfer Laws”), in each case after giving effect to all other liabilities of
Subsidiary Guarantor, contingent or otherwise, that are relevant under the
Fraudulent Transfer Laws (specifically excluding, however, any liability (A) in
respect of intercompany indebtedness to the Borrower or any Affiliate or
Subsidiary of the Borrower, to the extent that such intercompany indebtedness
would be discharged to the extent payment is made by Subsidiary Guarantor
hereunder, and (B) under any guarantee of (1) senior unsecured indebtedness or
(2) indebtedness subordinated in right of payment to any Borrower Obligation,
in either case which contains a limitation as to maximum liability similar to
that set forth in this Section 2(b) and pursuant to which the liability of
Subsidiary Guarantor hereunder is included in the liabilities taken into
account in determining such maximum liability) and after giving effect as
assets to the value (as determined under the applicable provisions of the
Fraudulent Transfer Laws) of any rights to subrogation, contribution,
reimbursement, indemnity or similar rights of Subsidiary Guarantor pursuant to
applicable law or any agreement providing for an equitable allocation among
Subsidiary Guarantor and other Affiliates or Subsidiaries of the Borrower of
obligations arising under guarantees by such parties.



                     (c)         Subsidiary Guarantor agrees that the Guarantor Obligations may at any
time and from time to time exceed the maximum aggregate amount of the
obligations of Subsidiary Guarantor hereunder without impairing this Guaranty
or affecting the rights and remedies of any Credit Party hereunder.



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	 	3.	 	Absolute Obligation



                     Subsidiary Guarantor shall not be released from liability hereunder unless
and until the Commitments of the Lenders have terminated and either (i) the
Borrower shall have paid in full the outstanding principal balance of the
Loans, together with all accrued and unpaid interest thereon, and all other
amounts then due and owing under the Loan Documents, or (ii) the Guarantor
Obligations of Subsidiary Guarantor shall have been paid in full in cash.
Subsidiary Guarantor acknowledges and agrees that (a) no Credit Party has made
any representation or warranty to Subsidiary Guarantor with respect to the
Borrower, any of its Subsidiaries, any Loan Document, or any agreement,
instrument or document executed or delivered in connection therewith, or any
other matter whatsoever, and (b) Subsidiary Guarantor shall be liable
hereunder, and such liability shall not be affected or impaired, irrespective
of (A) the validity or enforceability of any Loan Document, or any agreement,
instrument or document executed or delivered in connection therewith, or the
collectibility of any of the Borrower Obligations, (B) the preference or
priority ranking with respect to any of the Borrower Obligations, (C) the
existence, validity, enforceability or perfection of any security interest or
collateral security under any Loan Document, or the release, exchange,
substitution or loss or impairment of any such security interest or collateral
security, (D) any failure, delay, neglect or omission by any Credit Party to
realize upon or protect any direct or indirect collateral security,
indebtedness, liability or obligation, any Loan Document, or any agreement,
instrument or document executed or delivered in connection therewith, or any of
the Borrower Obligations, (E) the existence or exercise of any right of set-off
by any Credit Party, (F) the existence, validity or enforceability of any other
guarantee with respect to any of the Borrower Obligations, the liability of any
other Person in respect of any of the Borrower Obligations, or the release of
any such Person or any other guarantor of any of the Borrower Obligations, (G)
any act or omission of any Credit Party in connection with the administration
of any Loan Document or any of the Borrower Obligations, (H) the bankruptcy,
insolvency, reorganization or receivership of, or any other proceeding for the
relief of debtors commenced by or against, any Person, (I) the disaffirmance or
rejection, or the purported disaffirmance or purported rejection, of any of the
Borrower Obligations, any Loan Document, or any agreement, instrument or
document executed or delivered in connection therewith, in any bankruptcy,
insolvency, reorganization or receivership, or any other proceeding for the
relief of debtor, relating to any Person, (J) any law, regulation or decree now
or hereafter in effect which might in any manner affect any of the terms or
provisions of any Loan Document, or any agreement, instrument or document
executed or delivered in connection therewith or any of the Borrower
Obligations, or which might cause or permit to be invoked any alteration in the
time, amount, manner or payment or performance of any of the Borrower’s
obligations and liabilities (including the Borrower Obligations), (K) the
merger or consolidation of the Borrower into or with any Person, (L) the sale
by the Borrower of all or any part of its assets, (M) the fact that at any time
and from time to time none of the Borrower Obligations may be outstanding or
owing to any Credit Party, (N) any amendment or modification of, or supplement
to, any Loan Document, or (O) any other reason or circumstance which might
otherwise constitute a defense available to or a discharge of the Borrower in
respect of its obligations or liabilities (including the Borrower Obligations)
or of Subsidiary Guarantor in respect of any of the Guarantor Obligations
(other than by the performance in full thereof).



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	 	4.	 	Representations and Warranties



                     (a)         Subsidiary Guarantor represents and warrants that all representations
and warranties relating to it contained in the Loan Agreement are true and
correct.



                     (b)         Subsidiary Guarantor represents and warrants that it has full legal
power and authority to enter into, execute, deliver and perform the terms of
this Guaranty, all of which have been duly authorized by all proper and
necessary corporate or trust action.



                     (c)         Subsidiary Guarantor represents and warrants that this Guaranty
constitutes the valid and legally binding obligation of Subsidiary Guarantor,
and is enforceable in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, or other
similar laws affecting the enforcement of creditors’ rights generally; and that
the execution, delivery and performance by Subsidiary Guarantor of this
Guaranty does not violate the provisions of any applicable statute, law, rule
or regulation of any Governmental Authority.



                     (d)         Subsidiary Guarantor represents and warrants that no consent,
authorization or approval of, filing with, notice to, or exemption by,
stockholders, any Governmental Authority or any other Person not obtained is
required to be obtained by Subsidiary Guarantor to authorize, or is required in
connection with, the execution, delivery and performance of this Guaranty or is
required to be obtained by Subsidiary Guarantor as a condition to the validity
or enforceability of this Guaranty.




	 	5.	 	Notices



                     Except as otherwise specifically provided herein, all notices, requests,
consents, demands, waivers and other communications hereunder shall be in
writing (including facsimile) and shall be given in the manner set forth in
Section 11.2 of the Loan Agreement (i) in the case of the Administrative Agent,
to the address set forth in Section 11.2 of the Loan Agreement, (ii) in the
case of Subsidiary Guarantor, to the address set forth in Schedule I hereto, or
(iii) in the case of each party hereto, to such other addresses as to which the
Administrative Agent may be hereafter notified by the respective parties
hereto.




	 	6.	 	Expenses



                     Subsidiary Guarantor agrees that it shall, promptly after demand, pay to
the Administrative Agent any and all reasonable out-of-pocket sums, costs and
expenses, which any Loan Party may pay or incur defending, protecting or
enforcing this Guaranty (whether suit is instituted or not), reasonable
attorneys’ fees and disbursements. All sums, costs and expenses which are due
and payable pursuant to this Section shall bear interest, payable on demand, at
the highest rate then payable on the Borrower Obligations.



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	 	7.	 	Repayment in Bankruptcy, etc.



                     If, at any time or times subsequent to the payment of all or any part of
the Borrower Obligations or the Guarantor Obligations, any Credit Party shall
be required to repay any amounts previously paid by or on behalf of the
Borrower or Subsidiary Guarantor in reduction thereof by virtue of an order of
any court having jurisdiction in the premises, including as a result of an
adjudication that such amounts constituted preferential payments or fraudulent
conveyances, the Subsidiary Guarantor unconditionally agrees to pay to the
Administrative Agent, within 10 days after demand, a sum in cash equal to the
amount of such repayment, together with interest on such amount from the date
of such repayment by such Credit Party to the date of payment to the
Administrative Agent at the applicable after-maturity rate set forth in the
Loan Agreement.




	 	8.	 	Miscellaneous



                     (a)         Except as otherwise expressly provided in this Guaranty, Subsidiary
Guarantor hereby waives presentment, demand for payment, notice of default,
nonperformance and dishonor, protest and notice of protest of or in respect of
this Guaranty, the other Loan Documents and the Borrower Obligations, notice of
acceptance of this Guaranty and reliance hereupon by any Credit Party, and the
incurrence of any of the Borrower Obligations, notice of any sale of collateral
security or any default of any sort.



                     (b)         Subsidiary Guarantor is not relying upon any Credit Party to provide
to Subsidiary Guarantor any information concerning the Borrower or any of its
Subsidiaries, and Subsidiary Guarantor has made arrangements satisfactory to
Subsidiary Guarantor to obtain from the Borrower on a continuing basis such
information concerning the Borrower and its Subsidiaries as Subsidiary
Guarantor may desire.



                     (c)         Subsidiary Guarantor agrees that any statement of account with respect
to the Borrower Obligations from any Credit Party to the Borrower which binds
the Borrower shall also be binding upon Subsidiary Guarantor, and that copies
of said statements of account maintained in the regular course of or such
Credit Party’s business may be used in evidence against Subsidiary Guarantor in
order to establish its Guarantor Obligations.



                     (d)         Subsidiary Guarantor acknowledges that it has received a copy of the
Loan Documents and has approved of the same. In addition, Subsidiary Guarantor
acknowledges having read each Loan Document and having had the advice of
counsel in connection with all matters concerning its execution and delivery of
this Guaranty.



                     (e)         This Guaranty shall be binding upon Subsidiary Guarantor and its
successors and inure to the benefit of, and be enforceable by the
Administrative Agent, Lenders and their respective successors, transferees and
assigns. Subsidiary Guarantor may not assign any right, or delegate any duty,
it may have under this Guaranty.



                     (f)         Subject to the limitations set forth in Section 2(b), the Guarantor
Obligations shall be joint and several.



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                     (g)         This Guaranty is the “Guaranty” referred to in the Loan Agreement, and
is subject to, and should be construed in accordance with, the provisions
thereof. Each of the parties hereto acknowledges and agrees that the following
provisions of the Loan Agreement are made applicable to this Guaranty and all
such provisions are incorporated by reference herein as if fully set forth
herein, including Sections 1 (Definitions), 2.13 (Taxes; Net Payments), 9.1
(Events of Default), 11.1 (Amendments and Waivers), 11.3 (No Waiver; Cumulative
Remedies), 11.5 (Payment of Expenses and Taxes), 11.7 (Successors and Assigns),
11.9 (Counterparts), 11.12 (Indemnity), 11.13 (Governing Law), 11.14, (Headings
Description), 11.15 (Severability), 11.16 (Integration), 11.17 (Consent to
Jurisdiction), 11.18 (Service of Process), 11.19 (No Limitation on Service or
Suit) and 11.20 (WAIVER OF TRIAL BY JURY) thereof.



                     (h)         Subsidiary Guarantor agrees that (i) the execution and delivery of a
Guaranty by any Required Additional Guarantor after the date hereof shall not
affect the obligations of the Subsidiary Guarantor hereunder, and (ii) the
Subsidiary Guarantor and each such Required Additional Guarantor shall, subject
to Section 2(b), be jointly and severally liable for all of the Borrower
Obligations.



                     (i)         The undersigned Subsidiary Guarantor is a Required Additional
Guarantor and acknowledges and agrees that it is executing this Guaranty in
accordance with the requirements of the Loan Agreement in order to induce the
Credit Parties to make additional Loans and as consideration for Loans
previously made or issued. The undersigned Subsidiary Guarantor agrees that,
subject to Section 2(b), it is jointly and severally liable with all other
Subsidiaries who have previously executed and delivered a Guaranty pursuant to
the Loan Agreement for all of the Borrower Obligations.



 



 



 



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         IN EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this Subsidiary
Guarantee to be duly executed on its behalf.



	 	 	 	 	 
	 	 	
ERT DEVELOPMENT CORPORATION, a Delaware corporation
	
	
	
	

	 	 	 	 	 
	
	
	
	

	 	 	
By:
	/s/ Steven F. Siegel
	
	
	
	

	 	 	 	

	
	
	
	

	 	 	
Name:
	Steven F. Siegel
	
	
	
	

	 	 	 	 	

	
	
	
	

	 	 	
Title:
	Senior Vice President
	
	
	
	

	 	 	 	 	

	
	
	
	

	 	 	 	 	 
	
	
	
	

	 	 	 	 	 
	
	
	
	

	 	 	
FLEET NATIONAL BANK, as Administrative Agent
	
	
	
	

	 	 	 	 	 
	
	
	
	

	 	 	
By:
	/s/ Bill Lamb
	
	
	
	

	 	 	 	

	
	
	
	

	 	 	
Name:
	Bill Lamb
	
	
	
	

	 	 	 	 	

	
	
	
	

	 	 	
Title:
	Vice President
	
	
	
	

	 	 	 	 	




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Schedule I

to Subsidiary Guaranty



SUBSIDIARY GUARANTOR



under Guaranty dated as of March 1, 2002




	 	 	 	 	 
	 	 	Jurisdiction of Incorporation	 	Address for
	Name	 	or Formation	 	Notices
	
	 	
	 	

	ERT Development	 	
Delaware
	 	c/o New Plan Excel
	
	
	
	

	Corporation	 	 	 	Realty Trust, Inc.
	
	
	
	

	 	 	 	 	1120 Avenue of the Americas
	
	
	
	

	 	 	 	 	New York, New York 10036